USCIS this month again reaffirmed its commitment to using as many available immigrant visas as possible before September 30, 2022. If you have a question about your pending adjustment or priority date, please contact your BIL attorney. Overall, the agency continues to face historic delays, not only in the issuance of receipt notices, but also with case adjudications. We will continue to advocate for our clients through all means necessary to work towards swift adjudication of USCIS’s backlog.
USCIS Modifies Its Interpretation of INA §219(a)(9)(B) Permitting Certain Adjustment Applicants to Spend Inadmissibility Periods Inside the U.S.
Up until recently, USCIS had a policy of denying adjustment of status (AOS) applications if the applicant faced an inadmissibility provision preventing their adjustment for a statutory period of time (3 or 10 years), if the applicant did not spend that period of time outside the United States. In a court filing, quote, “USCIS intends to modify its interpretation of 8 U.S.C. § 1189(a)(9)(B) to no longer require an applicant for adjustment to spend his or her period of inadmissibility outside of the United States.” Specifically, on June 24, the updated policy guidance from USCIS reads, “[the] noncitizen’s location during the statutory 3-year or 10-year period and the noncitizen’s manner of return to the United States during the statutory 3-year or 10-year period are irrelevant for purposes of determining inadmissibility.” Depending on the specific facts of the case, the method by which the applicant re-enters the United States during their barred period may impact another inadmissibility bar, so the implication of this guidance may be limited. Please contact your BIL attorney if you need a case assessment.
Receipt Notice Delays
Across the board, many case types have been facing overall delays, but specifically with the issuance of receipt notices. For example, near the end of June, USCIS announced that it was transferring certain H-1B Cap petitions from the Vermont Service Center to the California Service Center for data entry and adjudication, noting that the receipt notice would be provided once the petitions were receipted by the center. This is just one example explaining the reason behind a delayed receipt notice, but nearly all case types are facing this delay. Your BIL attorney is working diligently to ensure that all cases are appropriately receipted and received by USCIS, but this note is important to temper any expectations of a quick receipt notice from the government.
USCIS Reconfirms Commitment to Using as Many Available Visas as Possible by September 30, 2022
USCIS recently updated its online “Frequently Asked Questions” site, confirming a commitment to using as many available visas as possible end the end of September this year. In pertinent part, USICS notes “the overall employment-based annual limit for immigrant visas in fiscal year 2022 is approximately twice as high as usual, primarily due to consular closures abroad during the COVID-19 pandemic which led to almost all 140,000 family-sponsored visa numbers going unused during fiscal year (FY) 2021. We are dedicated to ensuring we use as many available employment-based visas as possible in FY 2022, which ends on Sept. 30, 2022.” USCIS encourages filing medical exams (Form I-693) as soon as possible when they send a request, advising not to send unsolicited medical exams to USCIS as the government may have transferred your case to a different service center. The FAQ’s also note the updated guidance for transferring the underlying basis of employment-based adjustment cases, as well as general updates on the visa numbers available.
USCIS Provides Updated Information on I-485J Cases, Case Status Reports, and Medical Record Practices (Form I-693) through Ombudsman
Due to both USCIS’s commitment to processing as many EB-based adjustments by the end of fiscal year 2022 as possible, and the increased volume of inquiries on those cases, the USCIS Ombudsman’s office released the following updates:
- I-485J receipt notices for cases filed at the Western Forms Center should generally take no more than two weeks to be provided, although USCIS does confirm it was previously experiencing delays.
- If your transfer of underlying basis request was not made via I-485J, there will not be a receipt notice.
- The online case status note of “temporary pause” is not a mistake for certain adjustment applicants where an immigrant visa is not currently available for the originally filed category, but a request for transfer of underlying basis has been filed. Once USCIS adjudicates the I-485J, the case status should change to a resumption of processing.
- Do not file Form I-693, Report of Medical Examination, unless requested from USCIS.
- The Ombudsman’s office is no longer able to assist with requests for assistance regarding I-485 cases that are outside of normal processing times.
This update from the Ombudsman’s office can be found here.
House of Representatives Introduces Bill to Salvage Unused Immigrant Visas
On Friday June 24, 2022, Representative Grace Meng introduced an amendment to the fiscal year 2023 appropriations bill for the Department of Homeland Security to salvage unused immigrant visa numbers dating back to 1992 to reduce the backlog faced by many. This amendment faces a long legislative journey before actual implementation, and similar efforts have failed in the past. Yet, this does signal a step in the right direction on Capital Hill. We will continue to monitor the situation as it progresses.
The Biden Administration Ends Migrant Protection Protocols (MPP) and SCOTUS Affirms
On June 30, 2022, the Supreme Court of the United States (SCOTUS) affirmed the Biden Administration’s move to end MPP, also known as the remain in Mexico policy where migrants seeking asylum at the Southern border of the U.S. were turned away and sent to wait in Mexico for hearings. AILA President Jeremy McKinney called the MPP “a cruel and inhumane policy,” adding that AILA is “pleased the Supreme Court addressed the legal issue head-on.” The need for common sense immigration policy and comprehensive immigration reform is absolutely crucial, especially now, and we hope this allows the Biden Administration room to make more necessary changes in policy and law.
Department of Homeland Security Proposal on Virtual I-9 Review
DHS announced its intention to issue a proposed rule for virtual I-9 document review, noting it would be limited to certain circumstances and certain employers. The proposed rule is under review before it will appear in the Federal Register for notice and comment. In the Society for Human Resource Management’s report on the issue, the organization noted, “Not surprisingly, many SHRM members strongly desire to have a permanent virtual I-9 option,” said Emily Dickens, chief of staff and head of government affairs for the Society for Human Resource Management (SHRM). “Not only have the burdens and hazards of in-person I-9 preparation grown, but technology has advanced to a point where the believed benefits of in-person I-9 preparation are now equaled or exceeded by remote or virtual methods. Moreover, a remote I-9 preparation option would transform the entire onboarding process, enabling the process to be accomplished remotely.” We will continue to keep our HR partners up to date on forthcoming I-9 compliance regulations and guidance from DHS.
The Department of State has released the Visa Bulletin for August 2022. The June visa bulletin came with the announcement that the government would only accept the Final Action Dates chart for employment-based preference categories, and this continues for August 2022.
For employment-based categories, EB-3 India advances by one month but all others remain primarily the same, which will likely continue until the end of the fiscal year. Apart from India and China, EB-2, EB-3, and EB-1 remain current worldwide.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **